November 29, 1998
The body of a newborn is found in a dumpster
The newborn’s body was discovered by a couple collecting aluminum cans from a dumpster. They noticed a black plastic garbage bag and pulled it out after seeing what they believed was the leg of a baby doll. Instead, it was the body of a newborn boy. The child, later dubbed Baby Hope, had duct tape covering his mouth and pinning his arms to his chest.
The child was estimated to be between 2 to 5 days old and his stomach contained a “milk-like product” suggesting he had eaten shortly before his death. Forensic pathologist Tommy Brown who performed Baby Hope’s autopsy found evidence the baby had died from oxygen deprivation and his cause of death was officially ruled as asphyxia due to smothering. The bag Baby Hope’s body had been found contained feces and it was Brown’s opinion the infant had been alive when he was placed in the plastic bag where he voided his bowels upon his death. The death was ruled homicide.
Baby Hope’s case remained unsolved for five years until another newborn was found abandoned in 2003.
On June 6, 2003, a newborn girl was found by a passerby. She had been abandoned in a ditch, was naked, and covered in fire ants. She was taken to the hospital to treat ant bites across her body, including her eyes which had swollen shut after being bitten. The baby required a blood transfusion and experienced seizures in the hospital but survived her ordeal and was placed in foster care.
The abandoned infant was traced to 25-year-old Kenisha Berry, and Debbie Beavers of the Jefferson County Sheriff’s Department questioned her about the child. During the investigation, Berry brought Beavers to a dumpster where she said she had “thrown some of the evidence from the most recent birth.” The dumpster was the same in which Baby Hope had been found. Berry’s fingerprints were compared to latent prints from the plastic bag and duct tape from the Baby Hope case; they matched. Berry also consented to a DNA test which showed a 99.98% probability she was the mother of the discarded newborn.
Berry was taken into custody for the abandonment of her daughter and murder of her son. Meanwhile, Child Protective Services took custody of Berry’s abandoned daughter, as well as her older children whose ages ranged from 3 to 9 years of age.
While in custody, Berry admitted to abandoning her daughter and explained the disposal of her son’s body, though she did not confess to killing him. She stated she had delivered her son, whom she had named Malachi, during a home delivery and that he was “fine” at birth. She had concealed her pregnancy from friends and family and explained the sudden presence of Malachi by claiming she was watching a friend’s baby. According to Berry, when she placed Malachi in the trash bag he “was not kicking or moving.” Berry then used her grandmother’s car to drive to the apartment complex’s dumpster where she discarded the remains of her son.
During her trial, Berry again stated she did not kill Malachi. She testified that, on the day after his birth, Malachi’s nose was running. Berry left Malachi to buy some milk from the store and returned to find her son still sleeping. As time went on, she became concerned he was not waking up and checked on him. Berry found Malachi “limp” and noted he was not moving or breathing.
Berry further testified she did not call for help because she was “scared” and didn’t know “if it was against the law to have [deliver] a baby at home.” Berry stated she taped Malachi’s arms to his chest because they had started to stiffen and stick out from his body, and she taped his mouth shut because she was bothered when it remained open.
Developmental psychologist Dr. Oney Fitzpatrick spoke on Berry’s behalf at trial regarding certain mitigating circumstances in her case, testifying Berry “was under an extreme amount of pressure” at the time of Malachi’s death and her “sociocultural background [did] not promote reaching out to others for assistance.”
The prosecution referenced Berry’s decision to abandon her daughter five years after her son’s death and psychiatrist Dr. Edward Gripon testified she had told him she had abandoned her newborn daughter because she “did not care” for the child and she wanted to terminate her relationship with her daughter’s father.
Berry was convicted of Malachi’s murder in 2004 and was sentenced to death.
In 2007, Berry appealed her sentence. Forensic pathologist Stephen Pustilnik was brought in as a defense expert and testified that, after reviewing Malachi’s autopsy reports, photographs, and slides from his lungs, he observed “multiple areas of meconium [the first stools of an infant which can release in utero] 2 aspiration” in slides from the newborn’s lungs. Pustilnik testified he believed Malichi’s meconium released prior to his birth, was brought into his lungs, and caused “a significant pneumonia enough to explain this child being very sick and sick enough to die.”
Another defense expert, Carl Hunt, a medical doctor specializing in pediatrics and neonatology, testified the tape on Malachi’s mouth “would not be suffocating to this infant” as “young infants prefer to breathe through their noses.” (Pustilnik had testified with a similar statement but had noted the plastic bag in which Malachi was found would have been sufficient to suffocate the newborn.) Hunt continued with his testimony to state he could not determine how Malachi had died, either by homicide or natural causes, until he spoke with Pustilnik who informed him of the meconium in Malachi’s lungs. Hunt then concluded “this infant died of natural causes related to birth asphyxiation and meconium aspiration syndrome, in other words, lung failure.”
Forensic pathologist Tommy Brown, who had conducted Malachi’s autopsy, returned as an expert for the prosecution. Brown disagreed with the findings of pneumonia and infections in Malachi’s lungs and testified, “a pneumonia-you have to have neutrophils, which are white blood cells for bacterial infection or you have lymphocytes, which indicates a viral infection. The baby had neither of those. I cannot call this a pneumonia.” Brown also noted that a newborn with a viral infection or pneumonia would fuss and not be described as being “fine” as Berry had previously testified.
The court upheld Berry’s conviction but overturned her sentence, giving her a life term instead of capital punishment. She will be eligible for parole in 2044.
Offender Information Details. SID Number: 06977155. TDCJ Number: 01464493. Texas Department of Criminal Justice. Accessed: November 29, 2020. https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=06977155
Lezon, Dale. “Appeals court tosses mother’s death sentence.” Chron. May 24, 2007. Accessed: November 29, 2020. https://www.chron.com/news/houston-texas/article/Appeals-court-tosses-mother-s-death-sentence-1586229.php
BERRY v. STATE. Court of Criminal Appeals of Texas. Kenisha Eronda BERRY, Appellant, v. The STATE of Texas. No AP-74,913. Decided: May 23, 2007 (archived: https://caselaw.findlaw.com/tx-court-of-criminal-appeals/1143632.html)
“Reason behind killings unclear.” Odessa American. February 21, 2004
“Jury selection under way in abandoned babies case.” Odessa American. January 27, 2004
Easton, Pam. “Mother faces capital murder and child abandonment charges.” The Monitor [McAllen, Texas]. August 8, 2003
Easton, Pam. “Texas Woman Charged in Baby’s 1998 Death.” Associated Press. July 10, 2003 (archived: https://apnews.com/article/39fe05fb236ff395c1d9f928fb1b99b7)